Are Domain Disputes Suffering From Arbitrators Arbitrarily Cutting & Pasting Decisions?

Should A Toy Plane Get More Intellectual Property Protection Than A Real Plane?

from the just-wondering dept

Thu, May 6th 2010 7:56pm — Mike Masnick

There are all sorts of weird anomalies that come up when you realize the boundaries between certain areas of intellectual property law can get pretty fuzzy. Take, for example, a recent ruling in a case involving two toy companies, Lanard Toys and Novelty Inc. Lanard, a Chinese company, made knockoff toys of Novelty's offerings, including toy planes and helicopters. One of the issues was whether those toys were covered by copyright. Lanard argued they should not be, as copyright is only supposed to apply to non-useful items. The court, however, found that toys weren't actually useful (tell your kids!) and therefore could be covered by copyright. However, as Ray Dowd at the Copyright Litigation blog points out, this creates a bizarre situation where the inventor of an actual airplane might only get 20 years protection via a patent... but the maker of a toy knockoff of that real airplane? Well, he can get life plus 70 (or whatever it might be going forward) for the toy. As Dowd notes:

It seems anomalous that the poor inventor who made the real thing gets only twenty years of protection, but the clown who made the silly imitative toy gets life plus forever protection for his "original work of authorship". Query whether such protection promotes the purposes of the Copyright Act.

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Filed Under: copyright, patents, toys

36 Comments

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ChurchHatesTucker (profile), 6 May 2010 @ 8:14pm

This is why people don't take copyright seriously
Just sayin'
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Anonymous Coward, 6 May 2010 @ 8:23pm

Well, isn't it obvious? The inventor should also receive a government granted monopoly for the rest of their lives plus an extra seventy years. It's totally fair and won't have any negative consequences at all.

I should know as I'm an intellectual property lawyer and know more about the sciences and the useful arts than any other non-intellectual property lawyer out there.
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Anonymous Coward, 6 May 2010 @ 8:49pm

useful items cannot be copyrighted?

Adobe would be very interested in that little tidbit......
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Blake Reid, 6 May 2010 @ 8:57pm

Different scopes of protection
C'mon, Mike. The theoretical patent protection for the actual airplane is much broader than the copyright, as it allows the patentee to prevent anyone from building many types of planes, whether direct copies or not, depending on the breadth of the patent. The copyright protects only against substantially similar copies, which need to actually derive from the original copyrighted work. Thus, the copyright holder can't just go after anyone for making similar toy planes.

For what it's worth, toys (and toy planes in particular) are a favorite of law professors when discussing the useful article doctrine of copyright, particularly because they play on difficult issues of physical and conceptual separability. I wouldn't take the fact that this case came out in favor of copyrightability as support for the general proposition that toys or toy planes are always copyrightable. The court here even points out that it's a case-by-case, fact-intensive inquiry.

I also think you're being a bit disingenuous to suggest that someone could knock off a patented plane design with a toy and get a copyright of longer term than the patent. This case was about knockoffs of other toy planes, not patented plane designs, as a patent functionally dictating the shape of the plane would be strong evidence against copyrightability. Additionally, to the extent that the patented plane contained copyrightable elements, the knockoff toy maker wouldn't be eligible for copyright protection because he would be violating the exclusive right of the patent holder (who in this case would also hold a copyright in the copyrightable elements) to prepare derivative works (like toys).
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- Anonymous Coward, 6 May 2010 @ 9:53pm
  
  Re: Different scopes of protection
  "The theoretical patent protection for the actual airplane is much broader than the copyright, as it allows the patentee to prevent anyone from building many types of planes, whether direct copies or not, depending on the breadth of the patent."
  
  but isn't a patent only supposed to cover a specific design/implementation and not a general idea? Or are you admitting that this isn't the case?
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  - Blake Reid, 6 May 2010 @ 10:39pm
    
    Re: Re: Different scopes of protection
    @AC #5: I was speaking generally; one could imagine a very broad patent encompassing some invention necessary to build many different types of planes, or something very narrow and specific to a certain plane. Of course, all the § 112 requirements apply (enablement, written description, best mode, etc.), but I don't think that's what your question was getting at.
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    - Anonymous Coward, 6 May 2010 @ 10:42pm
      
      Re: Re: Re: Different scopes of protection
      You didn't answer the question. So you are admitting that patents can cover broad ideas and are not just limited to specific implementations/designs.
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      - Blake Reid, 6 May 2010 @ 10:47pm
        
        Re: Re: Re: Re: Different scopes of protection
        I guess I don't understand your question. What, in your mind, is the difference between "broad ideas" and "specific designs?" At a certain level of abstraction, any patent could arguably fit either description.
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        Anonymous Coward, 7 May 2010 @ 12:17am
        
        Re: Re: Re: Re: Re: Different scopes of protection
        What you said was
        
        "C'mon, Mike. The theoretical patent protection for the actual airplane is much broader than the copyright, as it allows the patentee to prevent anyone from building many types of planes, whether direct copies or not, depending on the breadth of the patent."
        
        So you are admitting that broad ideas can be patented.
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        Anonymous Coward, 7 May 2010 @ 12:18am
        
        Re: Re: Re: Re: Re: Different scopes of protection
        "I guess I don't understand your question."
        
        There is nothing not to understand. It's a basic simple question. It's just that you don't want to answer it because the answer is an insult to our broken patent system. But you already answered it with what I already quoted. Patents can be based on broad, general ideas and not merely specific implementations/designs.
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        Blake Reid, 7 May 2010 @ 10:14am
        
        Re: Re: Re: Re: Re: Re: Different scopes of protection
        Believe me, I have no qualms about "insulting" our patent system. It's just that your dichotomy of "broad ideas" vs. "specific designs" doesn't present a meaningful distinction. At what level of abstraction does an idea turn into a design? Our patent system doesn't require fixation, so what's the point of trying to distinguish between the two? It's all about novelty, nonobviousness, and subject matter.
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        Nelson, 7 May 2010 @ 5:08am
        
        Re: Re: Re: Re: Re: Different scopes of protection
        (tuning with harmonica)
        
        Ha Ha
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- Anonymous Coward, 7 May 2010 @ 1:01am
  
  Re: Different scopes of protection
  "C'mon, Mike. The theoretical patent protection for the actual airplane is much broader than the copyright, as it allows the patentee to prevent anyone from building many types of planes, whether direct copies or not, depending on the breadth of the patent."
  
  But, according to patent supporters, such a lock-up will support innovation, help the transportation system and help planes spread, in addition to giving incentives for creating planes, so where is the problem?
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  - Anonymous Coward, 7 May 2010 @ 1:16am
    
    Re: Re: Different scopes of protection
    The solution? Make patents last as long as copyrights. That will fix everything. Most of us will still be using typewriters, but hey, that's the cost of invention and innovation.
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    - no, 7 May 2010 @ 5:10am
      
      Re: Re: Re: Different scopes of protection
      You will use stone and chisel ... and you will like it.
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      - Anonymous Coward, 7 May 2010 @ 8:05am
        
        Re: Re: Re: Re: Different scopes of protection
        It's to promote the progress you know.
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    - Jose_X, 7 May 2010 @ 1:00pm
      
      Re: Re: Re: Different scopes of protection
      If someone didn't take concrete steps to limit ideas then everyone would be having ideas all the time and acting upon them without restrictions.
      
      And who best to limit access than the person who first speedily made the investment in time and significant money to formally tell the USPTO about said idea?
      
      And what better way to ensure no one steps out of line than to give the author of the patent application monopoly power for 20 years against any and all that attempt to leverage that idea in any way in any product for whatever reason and no matter how long they had that idea in their mind or how natural it was from their perspective?
      
      We should not mock the United State's idea anti-proliferation system.
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- Michael, 7 May 2010 @ 4:39am
  
  Re: Different scopes of protection
  The post is about copyright and how crazy it has gotten. The patent system is crazy these days too, but the post is actually (somewhat) ignoring that.
  
  So, keeping it simple for you. Do you not find it ironic that the copyright system offers life + 70 years of protectionism for a person who looks at a REAL airplane, COPIES the design, and makes a toy out of it when the guy that actually designed the airplane itself gets 20 years of protection on his design?
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  - Blake Reid, 7 May 2010 @ 9:59am
    
    Re: Re: Different scopes of protection
    Michael - that is not true. The person who copies the design of the real airplane, to the extent the original design has copyrightable elements, does not get a copyright in it all, because the toy plane is a derivative work of the original plane, whose copyright vests in the guy who designed the plane.
    
    I would find it ironic if what you were describing was actually possible.
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Anonymous Coward, 6 May 2010 @ 9:54pm

This has nothing to do with the difference between real and toy airplanes. This has to do with completely fucking absurd copyright rules we have for ANY item whether it's useful or not.
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- Blake Reid, 6 May 2010 @ 10:45pm
  
  Re:
  The absurdity of the copyright rules is an entirely different (though certainly valid) discussion than the one implicated by this article. Mike was trying to suggest that copyright vests "more" intellectual property protection in authors than patent does in inventors, which is (in my opinion) an apples-to-oranges comparison. While copyright certainly lasts longer, patent provides potentially broader protection during its admittedly shorter term.
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  - Anonymous Coward, 7 May 2010 @ 12:25am
    
    Re: Re:
    "While copyright certainly lasts longer, patent provides potentially broader protection during its admittedly shorter term."
    
    How much broader? Can you quantify how much broader? Copyrights can provide broad coverage for a book or piece of art. If I took a picture, made a copy of it, and changed a few pixels to the point that one would have to look hard to tell the difference, it will still likely be copyright infringement. So how is a patent different? How much more coverage does a patent provide? Do you have numbers? Are there any specific quantifiable amounts?
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    - Anonymous Coward, 7 May 2010 @ 12:26am
      
      Re: Re: Re:
      (Heck, someone made a derivative of the catcher in the Rye and that was still considered infringement of the original. So copyright itself can be broad).
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    - Blake Reid, 7 May 2010 @ 10:04am
      
      Re: Re: Re:
      It's very true that it's hard to quantify. But I think when you factor in things like scenes a fair, public domain elements, and the independent creation defense, copyright protection is potentially much narrower than patent.
      
      In particular, if I make a toy plane that so happens to look a lot like your real plane, but I've never seen your real plane, then I haven't infringed your copyright. But if your patent reads on my toy plane, it doesn't matter if I've never seen your plane or read your patent - I'm still an infringer.
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Anonymous Coward, 6 May 2010 @ 10:48pm

standard masnick reaching. blatant too.

the toy airplane would be covered for a single design, layout, appearance, etc. it isnt a copyright on model airplanes, just on a single model of airplane. very narrow.

making a comparison with a full size aircraft, which has parts and pieces subject to various copyrights and patents, isnt exactly the same. it is a huge reach.
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- Anonymous Coward, 6 May 2010 @ 11:49pm
  
  Re:
  Are you saying ANY part of an airplane that is required and covered by protection is less useful and worth less than a toy?
  
  If I owned the patent on ANY vital piece of airplane equipment, I sure as hell wouldn't put up with some smart-mouth commentator saying that my invention deserves 50 less years of protection than a plastic toy.
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  - Anonymous Coward, 7 May 2010 @ 7:08am
    
    Re: Re:
    no you are falling for the masnics logic. a copyright on a toy airplane might only cover the look of it like name, decoration, whatever. the parts of the airplane may no be copyright but in fact patent, which is different. you can make other toy airplanes with other looks, whatever, without risk of violating copyright (think mickey mouse versus speedy gonzales), but with a patent, others cannot produce the specific design of an airplane part without license or permission, even if they change things like colors, logos, whatever (think of patent drugs versus generic copies). the masnick is intentionally trying to mislead by grouping together different sets of rights. very typical.
    
    oh yeah, the airplane part maker may also have copyright on a name, a logo, or similar. but that is a different story, one the masnick isnt telling here.
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    - Anonymous Coward, 7 May 2010 @ 8:10am
      
      Re: Re: Re:
      "but with a patent, others cannot produce the specific design of an airplane part "
      
      So which is it, are patents notably broader then copyrights or not?
      
      and what about the look of a specific part or when the look is influenced by its designed.
      
      and in this specific copyright, no one can produce the specific design of the toy either because it'll violate copyright.
      
      "the masnick is intentionally trying to mislead by grouping together different sets of rights. very typical."
      
      "oh yeah, the airplane part maker may also have copyright on a name, a logo, or similar"
      
      You accuse Masnick of misleading people yet you don't even know the difference between a copyright and a trademark. Nice.
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      - Anonymous Coward, 7 May 2010 @ 9:09am
        
        Re: Re: Re: Re:
        i love when you intentionally misunderstand mike. have a nice weekend with your diminishing traffic.
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        Anonymous Coward, 7 May 2010 @ 9:41am
        
        Re: Re: Re: Re: Re:
        Adorable! You make no sense.
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- Anonymous Coward, 7 May 2010 @ 12:22am
  
  Re:
  So where do we draw the line between a single patentable component and an entire design? Is it that an entire airplane can be copyright while the various parts can be patented? and how specific does the design have to be to be patentable or copyrightable? How much of a change must there be before it isn't copyright? If I made a copy of half a book and maybe changed a few words around, it maybe different than the whole book but might still constitute copyright infringement. Why can't a specific component on an airplane be copyright in opposed to patented? Why can't the entire airplane be patented?
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- sheesh, 7 May 2010 @ 5:12am
  
  Re:
  "isnt exactly the same. it is a huge reach."
  
  But copyright on a toy is not a huge reach ... typical.
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stevehn (profile), 7 May 2010 @ 7:25am

If that is how it works then whoever made the real thing should made a toy version and copy right it.
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- Blake Reid, 7 May 2010 @ 10:15am
  
  Re:
  Steve - no need for the maker of the real thing to do that. If the real thing has any copyrightable elements, then the maker already owns copyright in them. The toy is then a derivative work of the real thing, and the toy maker is infringing on the real thing maker's copyright.
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Andrew D. Todd, 9 May 2010 @ 12:56pm

Airplane Type Certificates.
For practical purposes, the intellectual property for a real airplane is the Type Certificate, a license from the Federal Aviation Administration to manufacture and sell an airplane of a particular design, via a particular production process, based on satisfactory evidence that the airplane, as manufactured, will be safe. From time to time, people do buy and sell aircraft designs, and this commonly takes the form of buying the factory in which the aircraft is designed and built, along with all the drawings, tools, dies, fixtures, etc., and then hiring key employees. The whole lock, stock, and barrel. In short, enough continuity has to be maintained that the FAA will not restart the licensing process from the beginning.

http://en.wikipedia.org/wiki/Type_certificate

There are Supplemental Type Certificates for things like accessories. At a very rough estimate, the certification requirements increase the cost of an electronic box by a factor of about twenty over a consumer device of comparable complexity. One of these patent-troll-type outfits simply couldn't afford to own a type certificate. You can put a piece of paper in a drawer. If you don't pay a craftsman every month, he goes elsewhere, and it may be that he is the only one who can answer the FAA inspector's questions.
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sammiE, 16 May 2010 @ 6:36am

Intellectual property rights was created to protect both consumers and inventors. Not only that it puts into consideration all aspect of the inventors rights and the consumer's rights as well.
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